The ministerial powers proposed in the Health and Care Bill should not be granted

Somewhat hidden beneath repeated announcements about the likely ending of Covid-19 restrictions, the Health and Care Bill has finally been published. The broad thrust of much of it makes sense. Two elements do not.

The bill proposes excessive ministerial interference in the NHS

The first is that the new powers of direction for the secretary of state over NHS England that were outlined in the white paper have survived. These continue to risk taking the NHS back to the wrong sort of future – ending the operational independence of NHS England, and returning it to the days when ministers felt to the need to try to run the NHS themselves. The second is worse than the white paper’s proposal for the secretary of state to intervene earlier in service changes – reconfigurations, in the jargon. The bill, if the explanatory notes are to be believed, goes much further.

Ministers will have to be informed of all – repeat all – service changes, including temporary ones. The secretary of state will then decide whether to formally call them in for ministerial decision. And that way madness lies. It would mean in practice that, like it or not, ministers will be involved in every decision about every service change, because if they decide not to call one in then those impacted by the change will lobby them to do so. They will come under repeated pressure to make every decision, potentially dozens of them a year, when at present there is a mechanism that very largely shields them from that.

Currently ministers only intervene when a contested change is referred to them by a local authority, and the minister in turn refers it to the Independent Reconfiguration Panel, a body which since 2003 has been quietly taking much of the steam out of these issues. Its experts review the proposal and approve or reject. Of the 80-odd cases it has handled over the years it tends to approve, although quite often recommending some amendment. The secretary of state retains the power to over-ride the IRP, but very rarely does. Ministers are shielded from day in day out pressure over the myriad service changes that an evolving NHS inevitably involves, relying, so to speak, on the experts.

The one silver lining is that the bill does propose retaining the IRP which the white paper said would be abolished. It now looks as though the IRP is going to be very busy, although it is not entirely clear when and how it will be involved. Guidance is promised on precisely how all this is meant to work. It is almost impossible to believe that it will work well.

The bill would remove accountability and transparency from ministerial directions

The white paper’s justification for earlier intervention was that it would speed things up. But that goes against the entire grain of history. Ministers are more likely to block things, not least for electoral purposes, given that even the most successful of service changes – the reorganisation of stroke services in London for example – were deeply controversial at the time. Having ministers deciding from Whitehall on every service change will be good neither for the service nor for them.

And the same applies to the new powers of direction over NHS England. Explanation of why these are needed, there is none. Other that is, than the white paper saying that the pandemic showed the need for them, when the opposite is the case. The two bits of the pandemic response that were directly in the control of Matt Hancock and his department – where they did indeed have powers of intervention – were the provision of PPE and Test and Trace. Neither is a success story.

In practice, ministers can in effect direct NHS England, but they have to do so through the mandate – the rolling document that gives NHSE its annual marching orders. The mandate has to be agreed. If NHSE believes it is being asked to do something that is unachievable, ministers have to tell parliament what it is that they are insisting upon, and, if MPs object, they can debate the issue. That makes directions both transparent and accountable. Under these proposals directions have merely to be published – which is less transparent and less accountable.

And two things are noteworthy about the current arrangements. First, since they took effect in 2012, they have never been used. There clearly has not been the need. And second that Jeremy Hunt, who after all is the longest serving health secretary, is on record as saying he never felt the lack of powers of direction.

The health secretary should not be granted more powers of direction

Unless Sajid Javid can give parliament clear and compelling examples (plural) of what it is that ministers have not been able to get the NHS to do without powers of direction, these are powers that should not be granted, given that the operational independence of NHS England has been one of the few successes of the 2012 Act. The explanatory notes say these powers are not intended to be used frequently. Once they are there, however, the temptation will be to use them, and ministers would do well to recall Rudolf Klein’s stricture that centralisation of responsibility brings with it centralisation of blame.

The history of the past 30 years – from Ken Clarke’s original purchaser/provider split, to the reforms of Alan Milburn and his successors in the 2000s, and on even to Andrew Lansley’s Act – has been to seek to get ministers out of the day-to-day management of the service. Getting them back in, and to the level where every service change goes past them, is a decision that both they and the service will regret.